2006-23776
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DOC # 2006--0023776
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f1 Recording Requested By:
lOf
\ ~ When Recorded Mail To:
City Clerk
City of Encinitas
505 S. Vulcan Avenue
Encinitas, CA 92024
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JAN 11, 2006
3:57 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J SMITH. COUNT'( RECORDER
FEES: 35.00
PAGES 10
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1'",,.,
1" Assessor's Parcel No. 260-620-49
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AMENDED COVENANT REGARDING REAL PROPERTY
OFF-SITE EASEMENT TO COMPLY WITH ZONING SETBACKS
Building Permit Nos. 03-0132, 03-2006,
04-0329, 04-0470
This Amended Covenant is entered into among Mark D. Bobo and Kristy R. Bobo
(hereinafter "OWNERS"), Stephen R. Freyling and Heidi A. Keller (hereinafter
"BENEFICIARIES"), and the City of Encinitas (hereinafter "CITY"), and amends and
supercedes the Covenant Regarding Real Property Limited Use of Off-Site Easement to Comply
with Zoning Setbacks entered into between OWNERS and CITY on December 28, 2004, and
recorded in the Office of the San Diego County Recorder on o,cember 28, 2004, as Document
No. 2004-1219850, which provided, in part, that OWNERS would not use the easement, more
particularly described herein, for ingress and egress for OWNERS' property, more particularly
described herein, "other than such use as is necessary for the maintenance and construction of
improvements in the rear yard area."
A. OWNERS are the owners of real property which is commonly known as 1364
Summit Avenue, Cardiff, California (hereinafter "the PROPERTY") and which is described as
follows:
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See Exhibit A attached hereto and incorporated by reference herein.
B. BENEFICIARIES are the owners of real property which is commonly known as 1370
and 1372 Summit Avenue, Cardiff, California, (in that Stephen R. Freyling is the record owner of
vested title to such real property and Heidi A. Keller, holds a non-vested interest therein as Mr.
Freyling's spouse), and which is described as follows:
See Exhibit B attached hereto and incorporated by reference herein.
C. In consideration of the approval of Building Pennits 03-0132,03-2006,04-0329, and
04-0470 by CITY, OWNERS hereby covenant and agree for the benefit of BENEFICIARIES and
CITY to comply with the approved permit and the regulations of Municipal Code Chapter 30.16
(Setbacks) in that the building pennit plan sets indicate a sideyard setback on the south side of
the PROPERTY adjacent to an easement as five feet, i.e., the sideyard setback applicable to an
interior lot (the subject easement is more particularly described on Exhibit A, attached hereto and
incorporated by reference herein, as Parcel 2 of the PROPERTY). In order to be treated as an
interior lot, and thereby enjoy a five-foot sideyard setback adjacent to the easement, the
PROPERTY enjoying the setback must not have any rights of ingress and egress whatsoever over
the adjacent easement. Therefore, in order to comply with the five-foot setback regulation,
OWNERS hereby relinquish all rights to use of the subject easement to the south ofthe
PROPERTY, as to which the PROPERTY is the dominant tenement and the property commonly
known as 1370 and 1372 Summit Avenue is the servient tenement (hereinafter ''THE
SERVIENT TENEMENT"), for so long as this Amended Covenant shall remain in effect (see,
Paragraph D, below), except that the owners or occupants of the PROPERTY shall have the right
to reasonable non-vehicular access/entry upon the easement for the limited purpose of
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maintaining and repairing the south side of any fence/wall constructed on and along the southern
boundary of the PROPERTY.
D. This Amended Covenant shall remain in full force and effect until either:
(1) termination or modification by a writing among CITY, the owner(s) ofthe
PROPERTY, and the owner(s) of the SERVIENT TENEMENT; or
(2) treating the PROPERTY as a "comer lot", any building which constitutes an
enlargement, extension or expansion upon any permissible structural non-conformity of the
former single-story duplex located on the PROPERTY (in relation to its setback from the
southern lot line of the PROPERTY) which was constructed using the sideyard setback from the
southern lot line of the PROPERTY applicable under the Municipal Code to an "interior lot," as
opposed to the sideyard setback from the southern lot line applicable under the Municipal Code
to a "comer lot," is removed or reconstructed such that it complies with the sideyard setback
from the southern lot line of the PROPERTY applicable under the Municipal Code to a "comer
lot." [The location of the former single story duplex located on the PROPERTY, in relation to the
residence constructed under the building permits referred to in Paragraph C, above, is shown on
the Site Plan and Plot Plan documents filed with and approved by the City in connection with
said building permits. See, without limitation, Site Plan, received by City April 1, 2003, re
Permit No. 03-0132; Plot Plan, dated September 24,2003, re Permit Nos. 03-2006 and 04-0329.]
E. This Amended Covenant shall run with the land and be binding upon and inure to the
benefit of future owners, encumbrancers, successors, heirs, personal representatives, transferees
and assigns of the respective parties.
F. OWNERS' duties and obligations under this Amended Covenant are a lien upon the
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PROPERTY. Upon notice and an opportunity to respond CITY may add to the property tax bill
of the PROPERTY any past due financial obligation owing to CITY by way of this Amended
Covenant.
G. Failure of the OWNERS to comply with the terms of this Covenant shall constitute
consent to the filing by CITY of a Notice of Violation of Covenant and/or consent to the filing by
CITY and/or BENEFICIARIES of legal proceedings to enforce this Amended Covenant,
including an action for damages and/or injunctive relief, subject to the requirements of Paragraph
I, below. Enforcement of this Amended Covenant shall not include revocation of any of the
above-listed building permits.
H. CITY hereby assigns to BENEFICIARIES the non-exclusive right to enforce this
Amended Covenant against OWNERS. By action of the City Council, CITY may assign to a
person or persons impacted by the performance of this Amended Covenant, in addition to
BENEFICIARIES, the right to enforce this Amended Covenant against OWNERS.
I. If the owners of the SERVIENT TENEMENT and/or the CITY believe the
owners/occupants of the PROPERTY (or any of their agents, employees, or anyone acting on
their behalf) have used or are using the easement in violation of this Amended Covenant, they
shall take reasonable steps to notify the owner and occupant (if different from the owner) of the
PROPERTY, detailing the alleged violation, before taking any further action. If the claim of
violation cannot be resolved amicably, the parties will first attempt to resolve the dispute through
mediation before resorting to formal proceedings or court action. Mediation fees, if any, shall be
divided equally between/among the parties involved. If any party commences a formal
proceeding or action without first attempting to resolve the matter through mediation, or refuses
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to mediate after a request has been made, then that party shall not be entitled to recover
attorney's fees and expenses, even if such fees and expenses would otherwise be available to that
party in any such proceeding or action.
1. Subject to Paragraph I, above, if any party is required to incur expenses to enforce or
obtain interpretation of the provisions of this Amended Covenant, the prevailing party shall be
entitled to full reimbursement from the non-prevailing party(ies) of all such expenses, including
reasonable attorney's fees and the recovery of all expenses associated therewith.
ACCEPTED AND AGREED
OWNERS
Dated: \2,-e~- ~
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Mark D. Bobo
Dated: \6 -Ol' - ~eJ:f:)
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Kristy R. Bobo
BENEFICIARIES
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Stephen R. Freyling
Dated: \"t,-..o,+- U)o ~
Dated:~. ~ M~r:;-
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Heidi A. JStffer
(Notarization of OWNERS' and BENEFICIARIES' signatures is attached.)
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CITY OF ENCINITAS
Dated:
pIN~
STATE OF CALIFORNIA )
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COUNTY OF SAN DIEGO )
On]).!'. 8.J.h,g.Oo5"', beforeme,~.s , a Notary Public
in and for said County and State, personally appeared Mark D. Bobo, personally let9....!fl te I'fte,@
proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal
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f~ -- O"FFK>AL SEAl. u 1
.' ...... . ~ L. MONTES
~ . .. . NOTARY PUBllC.CAlIFORNIA ~
cr COMM. NO. 1482968 _
. SAN DIEGO COUNTY
. MY COMM. EXP. APRil 13. 2008
STATE OF CALIFORNIA
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COUNTY OF SAN DIEGO
On~. 8~~, before me, .. , a Notary Public
in and for said County and State, personally appeared Kristy . Bobo, personally Kltovv.l te Me,
~proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed
to the within instrument and acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal
~u
r - - - OFFICIAL siAL - 1
_@'L.MONTES
~ NOTARY PUBUC.CAUFOANJA ~
It! COMM. NO. 1482968 _
. SAN DIEGO COUNTY
. MY COMM. EXP. APRIL 13. 2008
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.'
STATE OF CALIFORNIA )
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COUNTY OF SAN DIEGO )
On J:tc.. IJ 2DOS, before me, XYE" p"fWrJ (JAT6 , a Notary Public
in and for said County and State, personally appeared Stephen R. Freyling, personally known to
me, or proved to me on the basis of satisfactory evidence, to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal
STATE OF CALIFORNIA )
)
COUNTY OF SAN DIEGO )
On '"]}c.. 7 20fl5, before me, J;yt f)"w"; (l4r~ , a Notary Public
in and for said County and State, personally appeared Heidi A. Keller, personally known to me,
or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed
to the within instrument and acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
~ Of~SEAl - -1
~ . JOVE DAWN CA TO
. NOTARY PUBlIC-CAlIFOANIA j
~ g>MM.~.~ _
. MY CO't.~EXP. JAN. ~~J
tu~ t!.1'
WITNESS my hand and official seal
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.. . OFFICIAL SEAL
~ JOVE DAWN CA TO 1
NOTARY PUBlIC-CALIFORNIA $
COMM. NO. l.4tlO695 _
. SAN DIEGO COUNTY
l_ _ M~ C~MM. EXP. JAN. 6. 2008 J
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021/ Amd6.Cov.fin
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PARCEL 2:
AN EASEMENT FOR INGRESS AND EGRESS AND PUBLIC UTILITY
PURPOSES OVER A STRIP OF LAND 16.50 FEET IN WIDTH LYING
WITHIN LOT 1 IN SECTION- 22, TOWNSHIP 13 SOUTH, RANGE 4
WEST, . SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO,.
STATE OF CALIFORNIA, ACCORDING TO 9FFICIAL PLAT THEREOF. THE
NORTHWESTERLY LINE OF SAID STRIP BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF PARCEL 1
HEREINABOVE DESCRIBED, BEING A POINT ON THE NORTHWESTERLY
LINE OF LAND DESCRIBED-IN DEED TO PETER D. CARPENTER,
RECORDED NOVEMBER 27, 1967 AS FILE/PAGE NO..,185440 OF
OFFICIAL RECORDS; THENCE ALONG SAID NORTHWESTERLY LINE,
SOUTH 660 48' 00" WEST, 15.00 FEET TO THE MOST WESTERLY
CORNER OF SAID CARPENTER'S LAND AND BEING THE TRUE POINT OF
BEGINNING; THENCE ALONG THE NORTHWESTERLY LINE OF SAID
CARPENTER'S LAND NORTH 660 48' 00" EAST, 119.12 FEET TO THE
MOST NORTHERLY' CORNER OF SAID LAND. SAID EASEMENT TO
TER~INATE NORTHEASTERLY IN THE EASTERLY BOUNDARY OF SAID
CARPENTER'S LAND.
PAGJ:: 2 OF 2
In
EXHIBIT B
THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 22,
TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN,
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY
PROLONGATION OF THE NORTH BOUNDARY OF LINE OF CARDIFF
VILLA TERRACE, ACCORDING TO MAP THEREOF NO. 1469, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
AUGUST 10, 1912, WITH THE NORTHEASTERLY LINE OF COUNTY
HIGHWAY ROUTE 1, DNISION 1, THENCE NORTH 31028' 00" WEST
ALONG SAID HIGHWAY LINE, 213.03 FEET TO THE BEGINNING OF A
CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF
1275.82 FEET AND A CENTRAL ANGLE OF 080 01' 00"; THENCE
NORTHWESTERLY ALONG SAID CURVE, 178.49 FEET; THENCE
TANGENT TO SAID CURVE NORTH 230 27' 00" WEST, 1237.98 FEET TO A
POINT; THENCE NORTH 660 48' 00" EAST 242.92 FEET; THENCE
CONTINUING NORTH 660 48' 00" EAST, 248.06 FEET; THENCE SOUTH 000
23' 00" WEST, 18.61 FEET TO THE NORTHERLY END OF A CURVE,
CONCAVE TO THE NORTHEAST, AND WHOSE CENTER BEARS NORTH
83003' 14" EAST, 2035.00 FEET; THENCE SOUTHEASTERLY ALONG SAID
CURVE, 54.95 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING SOUTHEASTERLY ALONG SAID CURVE, 77.49 FEET TO
THE MOST NORTHERLY CORNER OF THE LAND DESCRIBED IN DEED
TO MICHAEL 1. VARY, ET UX, RECORDED APRIL 5, 1955 AS
DOCUMENT NO. 44920 OF OFFICIAL RECORDS; THENCE ALONG THE
NORTHWESTERLY LINE OF SAID LAND, SOUTH 66048' 00" WEST,
100.58 FEET TO THE MOST EASTERLY CORNER OF THE LAND
DESCRIBED IN DEED TO HAROLD R. HONESS, ET UX, RECORDED
MARCH 24, 1960 AS DOCUMENT NO. 60305; THENCE ALONG THE
NORTHEASTERLY LINE OF SAID LAND AND THE NORTHWESTERLY
PROLONGATION THEREOF, NORTH 230 27' 00" WEST, 75.00 FEET TO
THE SOUTHEASTERLY LINE OF THE LAND DESCRIBED IN DEED TO
ALBERT SPRINGER, ET UX, RECORDED APRIL 21, 1961 AS DOCUMENT
NO. 69344 OF OFFICIAL RECORDS; THENCE ALONG SAID
SOUTHEASTERLY LINE, NORTH 660 48' 00" EAST, 15.00 FEET TO THE
MOST EASTERLY CORNER OF SAID LAND; THENCE NORTH 66043' 00"
EAST, 104.22 FEET TO THE TRUE POINT OF BEGINNING.